Civil liberties and human rights

The State Opening Of Parliament

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The Queen’s Speech last week had one notable omission: the firm commitment to a new Bill within months to repeal the Human Rights Act 1998 and for it to be replaced with a “British Bill of Rights”. Read more

It is a misconception to say Conservatives do not “do” human rights and civil liberties — yet Tory civil libertarianism wants the benefits of a libertarian approach to policy in certain cases without the means of placing such libertarianism on a sustainable basis. So Raab’s appointment as a junior minister at the ministry of justice is an intriguing move Read more

Michael Gove

Michael Gove  © Getty Images

The United Kingdom’s Conservative party no longer has to share power as part of a coalition. Now it has a majority in the House of Commons, one of the very first things the Tories want to do is repeal the Human Rights Act 1998 and replace it with something that purports to protect the rights of citizens but has a weaker connection to the European Convention on Human Rights. Getting rid of the Act is a long-standing objective of the Conservatives, and they now want to repeal it at speed.

According to the Guardian, repeal of the Act is an urgent priority for the new government:

The scrapping of the human rights act, a pledge included in the Tory manifesto, is one of the measures to be included in the prime minister’s plans for the first 100 days, when the Queen’s speech is delivered on 27 May.

The “pledge” is in the 2015 party manifesto, which contains the following statements about the Act:

We will…scrap the Human Rights Act and curtail the role of the European Court of Human Rights, so that foreign criminals can be more easily deported from Britain. [...]

The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. [...]

We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK.

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Procession Of Judges Marks Start Of Legal Year

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Imagine a politician making a clear and specific promise before an election. Imagine then, if you can, that politician breaking the promise when he or she is elected to office.

Is this the sort of situation where a voter should be able to go to court and obtain some legal remedy?

Usually when somebody lets you down over something important you can threaten to get the law involved. For example, if a debtor does not pay what is due, or if another driver does not take proper care and attention, you can sue the culprit.

And your rights to legal redress are not just for straightforward disputes: a well-brought legal action can halt an infrastructure project worth billions of pounds if the developer has put a foot wrong, and a judge in chancery will be perfectly happy on a Tuesday afternoon to rule that there is a worldwide complex trust preventing some absconder from misusing a victim’s assets. Where there is blame, there is usually a clever lawyer somewhere who can formulate for you a claim.

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The Ministry of Justice for England and Wales (MoJ) wants to make money out of the punishment system of Saudi Arabia.

It has a “commercial” proposal — made with the apparent blessing of the UK secretary of state for justice Chris Grayling — whereby it will charge £5.9m for providing scarce UK civil service resources funded by the UK taxpayer to one of the most brutal legal systems in the world.

How has this happened?

Our story starts with Saudi Arabia and the sheer nastiness of its legal system. In the last two weeks this regime has had worldwide attention.

This is in part because of the case of Raif Badawi, a writer who was sentenced to be flogged 1,000 times in batches of 50 lashes — because he created and wrote for a liberal website, the Saudi Free Liberals Forum. His first official beating was two weeks ago in front of a mosque in Jeddah; the one scheduled for last week did not go ahead, it is said, for medical reasons. International horror at the punishment appears to have now prompted the case’s referral to the country’s supreme court.

But the Badawi case is not the only one to have received publicity. Last week Layla Bint Abdul Mutaleb Basim was dragged through a street in Mecca and beheaded. She died screaming her innocence. The execution was not done smoothly: a video shows her head was hacked off with three blows, with no anaesthetic. Again this procedure was a formal punishment — an example of the Saudi legal system in action. Read more

A French national flag at the Paris statue "Le triomphe de la Republique"  (Joel Saget/AFP/Getty Images)

A French national flag at the Paris statue "Le triomphe de la Republique"  © Joel Saget/AFP/Getty Images

What should be the legal response to terrorism?

This question needs asking, for whatever the security problem, the political solution seems invariably to be more law. Something dreadful happens, and the response of many UK politicians and officials is “tougher powers” and another bill on the statute book.

It is almost as if the passing of a law is seen as a kind of solution in and of itself. Something must be done, and therefore something will be done.

And so in the UK over the last 15 years, we have had a Terrorism Act, then an Anti-terrorism Act, then a Prevention of Terrorism Act, another Terrorism Act, then a Counter-Terrorism Act, and most recently a Terrorism Prevention Act. Currently there is a Counter-Terrorism and Security Bill before parliament.

If statutes were weapons in the war against terror, the UK would be armed to its hilt. And inevitably, the atrocities last week in Paris have prompted the prime minister and home secretary to call for even more laws to combat terrorism.

 

Part of the reason for this glut of legislation is, of course, the relative impotence of UK politicians. There is, in fact, very little they can be seen to be doing in response to any crisis other than to promote additional laws. Policy making is hard, and good policy making and its implementation is not showy. Sometimes policy making will not need any new laws at all. But for the busy and media-conscious politician, it is easier to ban something, or to create a new legal power, than to actually think through what one is doing. Read more

A barrister picks up his wig (Photo by Ian Waldie/Getty Images)

  © Ian Waldie/Getty Images

A couple of months ago I raised the issue of whether police in the UK were using the Regulation of Investigatory Powers Act (RIPA) to obtain information which is legally privileged.

Legal privilege is important. In simple terms it means that your dealings with your lawyer are strictly confidential, both in respect of the content of the advice you are given (“legal professional privilege”) and also anything done to assist you in preparing a claim or a defence (“litigation privilege”). In essence, when information is under legal privilege then no court order can oblige you to disclose it to the court or other party, including the police.

It seemed obvious to me that there must be some possibility that police could be using RIPA to obtain information which would be covered by legal privilege. There are about half a million public authority requests for “communications data” every year (that is, information public authorities can get from a telecoms or internet service provider other than the actual content of your communication). Also it is now known that the Metropolitan Police have used RIPA to obtain details of calls made and received by journalists. So, if the police are using RIPA to circumvent the usual protection given to journalists’ sources, there seemed no reason, in principle, why the police would not use the same means to get information which would otherwise be legally privileged.

But what was lacking was evidence: to say something could be happening is not the same as saying that it is happeningRead more

Another day, another case before the English courts where the issue is whether someone should face criminal liability not for something they did, or intended to do, but for something they said.

In this particular instance, the case was an appeal from a local criminal court to the High Court in London. The facts of the case are unpleasant, and the vile speech act in question was not one which any civilized person would find acceptable. However, a two judge panel at the High Court granted the defendant’s appeal. And in his concurring judgment, Lord Justice Laws (an example of nominative determinism seemingly rife in the senior English judiciary – Lord Chief Justice Lord Judge is another example) made the following emphatic statement:

the words were…certainly offensive: a nasty, malicious antisemitic comment of which the appellant should be thoroughly ashamed, but they were not menacing.

The courts need to be very careful not to criminalise speech which, however contemptible, is no more than offensive.

It is not the task of the criminal law to censor offensive utterances.

This is a rousing declaration: the sort of judicial exclamation which makes you want to nod your head as you read it. It is sensible and liberal, even if the speech act in question being defended is disgusting. Read more

A general view of New Scotland Yard on October 2, 2008 (Photo by Dan Kitwood/Getty Images)

  © Dan Kitwood/Getty Images

The news that the UK’s Metropolitan Police had obtained the “telecommunications data” of a journalist so as to identify his confidential source has significant implications for criminal and civil lawyers — and also for their clients.

What the Met did was simple: they merely completed a request form under the Regulation of Investigatory Powers Act 2000 (RIPA) and sent it to the journalist’s mobile telephone service provider. As long as the RIPA request is approved by the appropriate senior police officer, the telephone company provides the requested information by return. This information is not the actual content of a call or voicemail — that would (or should) require an intercept warrant — but all the accompanying “metadata” (a list of calls to and from the mobile, their duration and times, and even the geographic location of the mobile during the call) as well as subscriber information.

For the police, asking for this telecommunications data is routine. Every year the police and other public authorities make about half a million RIPA requests. None of these requests need a warrant, and none need consent. Indeed, the subscriber is not even told the request has been made. All this information is provided silently and easily to the police force or other public body making the request. There are no real safeguards against abuse.

So, if the police can casually use RIPA to obtain the telecommunications data of the political editor of the Sun newspaper, is there any limit on who else they would seek this data on? And even if there was such a limit, how would anyone know that it was not being respected? Read more

The UK’s Metropolitan Police obtained the “telecommunications data” of the political editor of the Sun. They did this without his consent, and possibly even without his knowledge. They also did this without any warrant or other court order. And this intrusion has caused a media sensation.

The revelation was buried in the “Operation Alice” report of the Metropolitan Police into the so-called “Plebgate” affair about what was said (and not said) by the then chief whip of the government, Andrew Mitchell, at the gates of Downing Street in September 2012. This incident led to a senior ministerial resignation, and to four police officers losing their jobs with one also being prosecuted. There are accusations and counter-accusations, and an ongoing libel case. The published report set out part of the Metropolitan Police’s own investigation; on whether Mr Mitchell called the police “plebs” the report is inconclusive.

But deep in the report, comprising paragraph 5.120, is this short and, for many, worrying sentence:

The telecommunications data in respect of Tom Newton Dunn was applied for and evidenced.

What the Metropolitan Police appear to have done was to issue a “RIPA request” (under the Regulation of Investigatory Powers Act 2000) to Mr Newton Dunn’s mobile telephone company for “telecommunications data”. This is not the same as obtaining “intercept” evidence of live calls and voicemails – that would need a warrant. Instead the request would have been for the accompanying data which would be held by the telecommunications provider: the relevant numbers and other details of incoming and outgoing calls, their duration, their times — even the geographical location of the mobile telephone when the calls were received or made. As one can imagine, with this amount of data, obtaining an intercept of the actual content of the calls becomes less important. Read more

Yesterday, in response to the sharing on the internet of horrific and sickening footage of the apparent execution of journalist James Foley, the UK’s Metropolitan Police Service (MPS) provided the following statement to news reporters:

The MPS Counter Terrorism Command (SO15) is investigating the contents of the video that was posted online in relation to the alleged murder of James Foley.

We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under terrorism legislation.

What was eye-catching about this statement was that “viewing” the material could, by itself, be a criminal offence under “terrorism legislation”. By the time the statement was issued, thousands of people had viewed the video. Was the MPS really saying that each UK viewer faced, at least in principle, a conviction under terrorism law for doing so? Read more

The UK government is pushing through emergency legislation.

The Data Retention and Investigatory Powers Bill was published yesterday, and the intention is that it will be an Act of Parliament by the end of next week. A legislative process which usually takes up a year will be truncated into seven days. This is law-making in a hurry. Read more

What would be better than this sentimentality about a thirteenth century manuscript would be for the UK to have proper constitutional guarantees: to make it possible for a defendant to rely on his or her fundamental rights in practical case, and to make it impossible for parliament and the executive to violate these rights. But this would mean that the UK would at last have a mature approach to constitutional rights. Read more

A number of people in England are, it seems, now routinely searching bins for discarded food so that they and others can eat.

And if this was not sufficiently concerning, the state appears to be seeking to criminalise these people for doing so. Read more

Lady Justice does not always have her eyes covered: for example, contrary to popular belief, she does not wear a blindfold on top of the Old Bailey.

Sometimes she is depicted by artists as being blindfolded, and sometimes she is not. (Perhaps wisely, those statues and paintings which have Lady Justice blindfolded tend to have her with the sword safely lowered; and whether someone brandishing a sword whilst wearing a blindfold is an appropriate image for any system of justice is a matter of opinion.) But there is no consensus among painters and sculptors as to whether Lady Justice should be wearing a blindfold or not.

There is similar inconsistency in what parts of the justice system we are allowed to see, as members of the public or even as jurors or parties to a claim or prosecution. Some parts of our legal process are open, whilst other aspects are hidden from our view. This is because there is no general principle of open justice in the jurisdiction of England and Wales: it is often a game of pass the blindfold as any court case continues. Read more

Chris Grayling, the justice secretary and lord chancellor, is attacking judicial review. He has derided it in the Daily Mail, and the department he heads, the ministry of justice, has issued a consultation paper on further “reform”.

It is worth considering what point, if any, is served by judicial review. This will help explain why the government’s proposals to narrow the rights of individuals and representative groups to bring judicial reviews should be of general concern. Read more